Do I Qualify to File a Federal Removal in My Family Law Case?
If you are in a divorce child custody suit and you are facing child support enforcement, you might feel that the child support enforcement is unconstitutional or has violated due process, or that your child support order violates constitutional rights. This does not qualify for using 28 USC 1443 for removing your case from the state court to the federal court to be heard on parental civil rights violations.
You might be looking for something that will keep you out of jail. Unfortunately, filing a federal removal may only be a short delay and might make your problems worse and increase your debt. The last several parents who have tried federal removals have been sanctioned. The most recent one, filed by a father in Texas, not only has to pay the exes attorney’s fees but also has to pay for the cost of their preparation for the trial that the removal filing delayed. (Read the United States District Court Southern District of Texas federal removal ruling on remand and sanctions here, Momper v. The State of Texas.)
Most parents cases are remanded back to the state court in a month or two, some have been even shorter than that. Multiple filings get you sanctioned for sure. And the filings and what the federal court says can be used against you in the family court and you can be hit with more fees in family court than you were facing before. Filing federal removal could just dig your hole deeper and drive you deeper into financial ruin.
After a child custody order is made, many parents want to know how to sue a family court judge. Most parents are driven into bankruptcy and did not feel that they received justice and feel that the process was rigged. Most parents say that they want to sue the judge in federal court because they no longer trust that the state courts will do the right thing.
When a parent is broke, has been bullied in the process by those who are supposed to protect their parental rights, shocked that the judge can violate their constitutional rights, and are facing threats of immediate child support enforcement, facing the threat of jail, they look for anything that might buy them time so that they stay out of jail. Unfortunately, there are some parental rights advocates who are selling federal removals and a parental rights class action law suit as a way to sue for your parental rights association with your child. Make sure that you really understand the arguments that you are making in your pleadings before you use them, you are the only one who is going to pay the price for bad arguments, nonsensical arguments, and ones that do not address the issues specific in your case. If you get a petition for removal to federal court from someone and they make the claim that they protect constitutional rights of biological parents, the federal courts, all of them that have seen these, have dismissed and remanded all of them back to the state trial courts. The parents wasted $400 to file and some of them pay $800 to have one of the parental rights advocates fill the forms out for them. If the court coming after you for child support finds out that you paid this money or that you were able to borrow this money or someone donated money for you to do this, they can use this against you to say that you have the ability to pay. You might make your situation worse. If a Title IV-D court was going to give you any leniency before you might have just blown that up.
There are ways to fight unconstitutional child support orders, there just isn’t a silver bullet way. Before you find yourself in child support enforcement be proactive so that you are not inclined to make a desperate move that could hurt you even more. Make sure that you are controlling your case from the beginning of your divorce child custody suit through the end. Make sure that you know how to preserve your right to make constitutional arguments in your family law case during the trial. Know your legal rights! And I am not talking about just the ones that an attorney will say you have. They will tell you that you only have a right to a hearing and notice. That is just procedural rights. You also need to know your substantive rights.
Make sure you qualify under 28 USC 1441. In summary, that you are the defendant, that the removal is timely, and that there is subject matter jurisdiction to qualify for removal. Further you have to qualify under 1331 or 1333. Your case must have a Joinder of federal law with state law claims, causes of action. These must have been pleaded in your state trial court case. Is there diversity of citizenship as required in 1333? And to qualify under 1443, is there a law in your state that violates equal protection based on the color of your skin violating the equal civil rights of citizens of the United States? And you must be the defendant in the state case to qualify. (See Winderweedle v. State of Illinois, et al, filed in Northern District of Illinois on March 1, 2018 and remanded back on April 2, 2018, just 31 days.)
Federal removal 28 USC 1441 and 28 USC 1443
Federal Removal will do nothing to change your case, will not help you, will make you more broke and send you back possibly in worse condition. You will not be heard on the constitutional violations through this statute, and the delay before you are sent back to the state court might not even last very long. The author of the motions being used by many had his case thrown out in a day (see below) and was told he could not file these anymore without permission. Nothing has changed. The average time it takes to remand (that means send your case back to the state court) is 2 to 3 months.
You are probably already broke and don’t have money to waste on this. Can you afford to spend $1200 — $800 to the author of the motions and $400 for the filing fee in the federal court? Can you afford to have $5000 sanction put on you for filing these frivolously? And then be sent right back to face the enforcement anyway?
I get that you might be in a panic and you might think that there is nothing else and you think you have tried everything. Does that mean you should make your situation worse? And yes, it can get worse.
Parents are very vulnerable when they are facing jail for nonpayment of child support. Being threatened with enforcement of family court imposed debts like excessive child support or fees for court-appointed child attorneys like an amicus or a GAL all because you just wanted to continue to be a father or a mother in your child’s life can cause tremendous fear and terror. Putting you in a panic and making it very easy for someone to take advantage of you. Unfortunately, this could be proposed to you from someone you know. One of the tactics used to get you to fall for federal removal under U.S.C. 1443 is to have someone you know propose it to you, this person may even be calling themselves parental rights advocates and then they get the person who writes these on the phone with you. Parents are spending money with the people pushing this method without full disclosure and being sold an empty promise that this is going to save them somehow from the expense and abuse in the family court, and that the violation of their constitutional rights in the family court will be heard.
Unfortunately, there are people who will take advantage of your vulnerability. This is why we say do not make important decisions while you are in this emotional state. Attorneys are not the only ones who can take advantage. People you trusted most, people you thought were your friend, people you find it hard to dislike, people who have been through it too. Most people find out about new ways of doing things through friends who have been through it. Your constitutional associations with your child are very complicated, it takes many thousands of hours to craft good arguments. If you are not a constitutional expert it will be very easy for someone to fool you.
Do your homework before you file one of these. The people pushing them know that they do not work and they are not offering any solutions for overcoming the reasons they have been thrown out of federal court and remanded back to the family court with nothing resolved. Some parents have been sanctioned and had injunctions placed on them by the federal court. The federal courts do not play around with these and if they think that your motives for removal are for “delaying litigation” and that you “lacked an objectively reasonable basis for seeking removal” you will be sanctioned under Section 1447(c).
The federal removal statute that these activists are using are narrowly interpreted and not a general use statute like 28 U.S.C. 1983. If you are using federal removal to avoid child support contempt hearing or enforcement or to evade arrest or some other enforcement of family court orders, state orders, then the federal court judge just might sanction you, pro se or not! Normally, we would not read too much into some court sanctions, as we know that most courts want to deny that you have any rights and instead label you a “loser” and then punish you for trying to assert your rights in hopes that this will be enough to discourage you from speaking out or fighting the unjust taking of your rights. However, there is no federal removal for family courts for these reasons, so we would not recommend taking the chance with this method.
Do not be fooled by the language in this statute: (It was written in 1945 and has been interpreted by the federal courts. Look up that case law at scholar.google.com)
28 U.S. Code § 1443 – Civil rights cases US Code
Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
The holding on 28 U.S.C. 1441 and 1443 remains: (This case took less than 2 months to be sent back to the state court.) (This comes out of the 7th circuit.)
“Because the action is not one which this Court has jurisdiction over, under either 28 U.S.C. § 1332 or 28 U.S.C. § 1441, the cause will be remanded to the proper state court. Respondent’s Motion to Remand seeks an award of costs; under 28 U.S.C. § 1447(c) a district court may “order the payment of just costs” if an action “was removed improvidently and without jurisdiction.” An award of costs is discretionary with the court and is usually appropriate only when the nonremovability of the action is obvious. Lee v. Volkswagen of America, Inc. 429 F.Supp. 5, 7 (W.D.Okl.1976); Dunkin Donuts of America v. Family Enterprises, Inc.,381 F.Supp. 371, 373 (D.Md.1974).” (See Olsen v. Olsen (7th Federal Circuit 1984)
“Petitioner asserts that the present cause is removable under 28 U.S.C. § 1443, which permits removal of certain actions involving laws providing for the equal civil rights of citizens of the United States. 28 U.S.C. § 1443, 14 Wright & Miller, supra, at § 3728. The present action does not meet the requirements for removal under 28 U.S.C. § 1443.”
In a nutshell:
“Former wife’s action against former husband for award of support arrearage and entry of order holding former husband in contempt of divorce decree for his failure to pay support as ordered was not removable under statute permitting removal of certain actions involving laws providing for equal civil rights of citizens of United States. 28 U.S.C.A. §§ 1441, 1443.”
And NOPE those civil rights are not like the general civil rights statutes in the federal law. The civil rights this statute is talking about are defined very specifically as you will see below.
Another Reason Against Federal Removal.
If you are facing jail for nonpayment of child support you are probably already broke. Some of the parents are paying $1200 to file these. If they are already broke and unable to pay their child support and need to fight an unconstitutional practice, they just wasted their resource on this removal. We know that you have already been put through the ringer and cannot afford to waste money on something that has no chance of working whatsoever. You will be sent back to the family court, and you could be sent back with additional disadvantages where the family court can use any new labels the federal court placed on you. You could now be accused of harassing the ex and as attempting to interfere. Going back to the trial court with additional disadvantages makes it even more expensive for you to try and turn things around in that court.
Federal Removal – Not the path of success that parents had hoped.
One of the primary salesman for the federal removal had his case kicked out March 2017, and here is what the court said:
Removal under Section 1443 is thus very narrowly construed “to require strict satisfaction of both the `civil rights’ element and the `enforcement’ element intrinsic within it.” JPMorgan Chase Bank, N.A. v. Innes,2013 WL 5972407, at *2 (W.D. Tex. 2013).
Another person had theirs kicked out and here is what their ruling said:
a petitioner’s pro se status does not offer him “an impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Farguson v. Mbank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986).
Normally I might say “well courts can get it wrong”, but that is not the case here, these are not salvageable. There is no path here for parents. You cannot use this statute to resolve your family court case. Save your money. Use it for something that has more liklihood of prevailing or making a difference. Make sure you ask yourself whether it is worth the money to have a short delay in your family court case, possibly be sanctioned thousands of dollars, and get sent right back to your state court anyway and still having to face whatever it was you were trying to avoid. The federal court will not change anything with your custody case. Federal courts won’t hear custody suits in jurisdictions where there are state courts to hear them.
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994).
This Court lacks jurisdiction to hear . . . claims under the Rooker-Feldman doctrine. As the Fifth Circuit has
The Supreme Court has definitively established, in what has become known as the Rooker-Feldman
doctrine, that federal district courts, as courts of original jurisdiction, lack appellate jurisdiction to review,
modify, or nullify final orders of state courts. If a state court errs the judgment is not void, it is to be reviewed
and corrected by the appropriate state appellate court. Thereafter, recourse at the federal level is limited
solely to an application for writ of certiorari to the United States Supreme Court.
We don’t blame parents for wanting there to be something here; hope and desperation are powerful emotions. The thought of taking on the abuse and punishment that the state family courts wield many times is more than a parent can take. I understand. I get it. I have heard cases end in tragedy as the parents feel hopeless and have no way out. However, there is no hope here. This is nothing more than a scam and a way to get $800 out of you. Federal courts are for hearing constitutional violations; however, you have to use the right statutes to be heard on these. The federal removal statute unfortunately is not a statute you can use to be heard on your family court constitutional violations.
Buying More than Time
Some parents might be using these to buy themselves time to find an attorney, to afford an attorney, or just to purely delay so that they can try and figure something else out. The federal court is going to look into the circumstances of your family court case however and if they think that you filed purely for the purpose of delay they can punish you. For instance, if they see that you filed just before an enforcement hearing, just before you were going to be arrested, or an emergency hearing that threatened to take your child because of allegations of harm, you are probably going to get sanctioned just like the following parent did.
We have not printed case names in order to protect the identify and reputations of these parents. The following parent was charged $5000.00 as a sanction for filing what the federal court considers an attempt to delay the family court proceedings, to interfere and harass the ex. The case was sent right back to the state family court and the parent ended up still facing the charges they had tried to avoid. And now the parent was $5000.00 poorer plus the $400 filing fee and whatever they paid the person who wrote the motion argument for them. Basically, this parent just increased their expenses.
Sanctions were recommended, because this Court found that “the removal petition was baseless and had no legal support,” and “given the timing of the removal, it appears that it was calculated to delay the inevitable unfavorable outcome . . . is facing in state court.” . . . . Judge . . . adopted the Report and Recommendation, remanded the case to state court and awarded Defendant $5,000 in attorney’s fees.
The second attempt at removal for this parent was remanded back in 10 days. So now even the delay was not very long.
As explained in depth in its previous Report and Recommendation, this Court lacks jurisdiction to review . . . state court child custody and divorce proceedings under both the Rooker-Feldman doctrine and the domestic relations exception. . . . Accordingly, the Court, sue sponte, again recommends that the district judge remand this case to state court.
“. . . frivolous removal is another attempt to delay and disrupt his divorce and child custody proceedings and to harass his ex-wife, . . . . Sanctions are once again appropriate for this abusive and dilatory behavior.
And the federal court recommended an injunction, so not only will there not be a third time, but the parent has earned an additional label for themselves that can be used against them in the family courts.
The Magistrate Judge FURTHER RECOMMENDS that the District Court impose a pre-filing injunction in this case requiring . . . to obtain leave from a United States District Judge before filing any future notices of removal purporting to remove the case
We want to caution you once again though that courts, including federal courts many times use these terms “frivolous” and “without merit” more loosely than they should. And not to write off an argument or a method just based on those labels. This time however, it is legitimate to say that these do qualify as “frivolous removal.” There is a long history to show that the removal statute has a very narrow use. This does not mean that you cannot fight the interpretation of its use. We just believe that there are shorter paths and other fights that we feel will be more effective more quickly. We know for sure you will be sanctioned here whereas there are other paths like the 28 U.S.C. 1983 is much more likely to be the path of success. Your resources are most likely limited and so you probably want to use them as wisely as possible. To increase your odds of success we would not recommend using this method. Even if others have failed at using the 28 U.S.C. 1983 path, there is a difference. The 1983 path has potential for success and other movements have succeeded under this path. There are fewer barriers to overcome using the 1983 path. And recent rulings have created positive momentum for being heard through this federal statute. None have even come close to overcoming the obstacles in the federal removal, zero, nil, zip, none.
Are any parents continuing to file these?
Parents are still filing frivolous federal removals. The federal removal is a waste of time, effort, and resources. And no matter who files these, it doesn’t make this any more credible, not even if it is someone running for office or someone who holds a medical degree.
Parents have been so abused by these courts for so long with no hope that this has become what they think is their last resort. The family courts skip proper due process in their proceedings and jump right to punishment hearings without proper adjudication, leaving the parents desperate, helpless, and hopeless. Many of these parents are facing punishments for things that the state court created. This was out of each of these parent’s control. They have been powerless for so long that they have become desperate to be heard. They become vulnerable to just about anything they think might provide them with some relief. Federal removal for child custody constitutional association violations does not provide relief, but instead increases risks and creates disadvantages for parents already practically driven to suicide.
We do understand why these parents fall for this and are saddened that anyone would keep selling this snake oil though and continue to take advantage of the people they proclaim they want to help when there are valid and appropriate ways to fight these abuses. But there are legitimate paths to use, they are not easy or cheap. One is 28 USC 1983, declaratory judgments, and appeals.
You can still get sanctioned and be labeled as frivolous using legitimate paths as well, but at least the other paths you have a chance of being heard. You will be contributing to making real progress. The federal removal does none of that. So if you are going to use your money and take a risk and possibly get punished or labeled, use a path that at least has a chance of eventually winning, without having to overturn the federal court’s interpretation of one of their statutes! To win using removal under 1443, the federal courts would have to re-define the intent of the legislators when they passed that statute. That is extremely unlikely to happen. There are already federal statutes that are used for constitutional violations. Still not easy, but a valid path with valid and credible arguments is 28 U.S.C. 1983.
Perhaps before parents trust those saying they are there to help them, they should get the person to define what kind of help they mean before they embark on paying them $800 and then the $400 to the federal court to file. Anyone who knows us, would know that we have no issue with people charging for their services, if the service is one that provides full disclosure and is valid and has the potential of being effective. This unfortunately is none of these.
What kind of results are parents getting who have attempted federal removal using 28 USC 1441 and 1443?
All of the cases that I’ve been made aware of that have been ruled on so far have been kicked back to the state for either not following the technical rules or because the statute was being used improperly. The federal courts cannot reach the merits of the arguments because the law does not allow parents to sue using this statute, 28 U.S.C. 1441 and 1443. These federal statutes can only be used for federal violations and if there is a state statute that discriminates against you based on the color of your skin, period. Even though when you read the 1441 and 1443 statute on their face they appear to apply to everybody who meets the diversity, defendant, and timeliness qualification. The supreme court has said that the federal removal under this United States Code does not and there is no getting around that any time soon. There are multiple factors that go into interpreting a statute, and one of them is the way that the courts are interpreting the statute. Unfortunately, this statute is interpreted to only apply to persons suffering a violation of equal protection and specifically can show a law that discriminates against them based on the color of their skin. Even if a parent got passed this, they would have to then get passed the abstention doctrines to be heard. There is much involved in federal cases and not many people have the kind of experience and skills necessary to overcome all of the barriers.
Here are some additional excerpts from more cases that demonstrate that federal removal has failed parents every time. See the results for yourself:
The following case was filed in Colorado in 2015 and was kicked out in 2016 based on “procedurally improper removal” and not meeting the requirements of the removal statutes. All federal courts that have ruled on this to our knowledge have ruled that these statutes only apply to defendants and to cases that involve issues regarding persons of color. The case reads that “matters within the province of the legislative and executive branches. See id. Regardless of the merits of Plaintiff’s policy arguments, it is not this Court’s job to ignore the law because there is a policy reason to do so. The clear language of the statute and Tenth Circuit precedent mandates that this action be remanded based on procedurally improper removal.”
This excerpt was in response to the removing parent’s response to the federal courts request for him to show cause and prove how the statutes are proper for his removal. The parent did not overcome the statutory requirements and the case was sent back to state.
Ruling was made to remand the case back to state court January 2016.
CONSEQUENCES IN THIS CASE: This parent discovered that they almost lost opportunity to pursue other valid causes of action because the state clock had continued to toll. Apparently this parent could have lost any opportunity for the tort claims that they are currently pursuing in their case. If the federal process had taken long enough to complete, they told us that this door could have been shut. (Please check into these things to see if this is the case in your state before you make the decision to use this.)
PALMER NOTE: Know how to preserve your argument or you could lose that ability on appeal.
More Cases and Rulings
The next case reveals additional consequences you should be aware of before you take steps like this. The court found this case to be “frivolous.” The court additionally stated that even if the Plaintiff “had met all other procedural requirements, his attempt at removal would fail for substantive reasons and still necessitate remand based off the allegations in his Notice alone. The court also stated that even if the parent had provided everything the court had asked for that this case still would have failed based on the arguments alone and that the arguments have “no legal merit.” (This parent had failed to respond to the Show Cause request. The court had asked for the show cause because the pleadings did not satisfy the requirements of the statutes being used to remove the case from state court. This is the court’s way of providing the person filing an opportunity to cure the shortcoming. Keep in mind that even if this parent had responded to the show cause the court addressed this and said that this parent still would not have met the statutory requirements. There simply was just no way to remedy this. This statute just is not an option for being heard on family law cases.) The excerpt reads like this: “On November 21, 2015, the Court issued the Order to Show Cause because it had come to the Court’s attention that this matter may not have been properly removed from state court.” And goes on to say, “However, even if he had provided the Court with the required documents, his case would still be remanded because section 1443…bases for removal, is inapplicable. Supreme Court precedent and Fifth Circuit precedent are undoubtedly clear in this regard….appeal is therefore frivolous and not taken in good faith.
Ruling was made to remand this case back to state court March 2016.
CONSEQUENCES IN THIS CASE: Even if you are pro per you can be charged the other parties attorney costs and filing fees. If a case is found to be frivolous you could also be dismissed with prejudice. This prevents you from re-filing the same claims. However, the court has discretion to add this sanction or not, and in this case, the court did not charge the parent.
PALMER NOTE: Federal courts to date are not allowing 28 USC 1443 federal removal under these statutes to be used to hear constitutional violations in child custody cases.
These removal statutes also apply only to defendants and only apply to persons being deprived based on color.
Another Federal Removal Texas case remanded back to the State Trial Court.
The next case was also filed in 2015 and was remanded back to state court. It is not typical for a removal to be in the federal courts for a year. This parent was able to tie theirs up in the courts longer because of technical complaints regarding the way the federal court labeled the filing, and some missing documents from the record. The district court issued an opinion to remand back to state court, the filer appealed this decision, and amended request that the court allow 1443 to be used for civil rights for custody case litigants or in the alternative to be allowed to amend their pleadings converting it from federal removal to 42 USC 1983 if the 1443 removal was not sufficient. A federal removal cannot be converted like that, and a 42 USC 1983 does not remove the case from the state court. The federal appellate court in Texas confirmed the federal district court’s ruling and the case was sent back to the state court. They confirmed that 1443 only applies to complaints that the person was discriminated against based on color.
The ruling from the lower court, (the federal district court), is that this case is recommended to be remanded back because this is not a race-related civil rights issue, and that general civil rights violations “do not suffice” for qualification to use 28 U.S. 1443 statute under 42 USC 1983. This father’s pleadings also misunderstand the race section of this and thinks that making a reverse discrimination argument will help them overcome this. It will not, the statute is not restricted to black persons only. It is applicable to any person of any color (this includes white) if there was a law written that discriminates based on the color of their skin. For example, if a law stated that “no white man could serve on a jury in that state.” Then this person would qualify to remove to the federal court under this statute. This court’s precise words are “For this reason, defendant’s claim that trying a suit in state court “will violate rights under constitutional or statutory provisions of general applicability or under statues not protecting against racial discrimination will not suffice” for removal under Section 1443″ and further state that “because a party removing pursuant to Section 1443 must establish that his civil rights were violated due to race, “conclusory allegations that state court officials conspired to deprive him of certain non-race-related civil rights, including freedom of association and due process of law” will not suffice for removal under Section 1443.”
CONSEQUENCES IN THIS CASE: Precious time is being wasted. They risk sanction if one of the court’s decide that this is abuse of process. So far the lower court decided to give the filer the benefit of the doubt based on the fact that they are not an attorney and that these are complex issues. However, that does not prevent the appellate court from issuing sanctions. And they warned the father that not sanctioning him was “not to be construed as a finding that fees cannot be awarded against a pro se Defendant for improper removal. The Court merely finds that, in this case, given the statutory language and the rather complex case law narrowly interpreting it, Defendant’s pro se status is relevant in its fee determination. The Court just didn’t have any evidence that this father was intentionally abusing the process or decided to give him the benefit of the doubt. This is not the case in many of these now. The court’s patience have worn thin and they are sending these cases back to state court much more quickly and getting much harsher with these filers.
PALMER NOTE: We believe that this filing is creating unnecessary delay when they could be in a 1983 filing from the start. Even if the appellate court or district court allows the pleadings to be amended to a 1983 filing, which we have not seen them do under a 1443 filing, precious time for being heard on their constitutional issues has been wasted. A 1983 suit however will not stop state proceedings. If your effort is intended to delay state proceedings because you are going to face jail, or face some kind of protective order hearing, or other contempt or enforcement, the federal court will see this and you might be found to be filing frivolously to disrupt the state court proceedings. The federal courts have made parents pay for disrupting the state enforcement with this mechanism, and you just might find this costing you more than you bargained for.
Your case will be remanded back to state court. You will be subject to the state court continuing whatever they were doing prior to you filing the federal removal. If they were trying to throw you in jail, then they could continue that pursuit. Do not make the mistake of thinking that because you attempted this that they wouldn’t dare enforce on you when it gets sent back. And if you were not paying child support or stopped during this removal, check with an attorney to see whether this continues to accrue, your arrears could be even more afterwards. You could be accruing more penalties and face an even bigger mess when you are sent back. Make sure that you are ready for whatever has accrued and do not ignore the state court. They can and will jail you for whatever excuse they can find. If you were trying to protect yourself from going to jail you will need to be ready for the state to proceed. Make sure you prepare your state response and defense and hope that the federal court doesn’t send you back in an even more disadvantaged position. Be ready to act for when you are sent back.
Also note that being rejected in these cases for in-applicability of the statute that you tried to use, does not mean that you do not have civil rights or constitutional violations. It just means that they are not going to allow you to be heard using this path. Federal removal is a dead end.
Remember that while you might say, but the statute says civil rights. Statutes are not only interpreted on their face, but also through case law. You need to do your own homework and research, even if you are using templates. Check the argument in those templates and make sure that it applies to you and that the argument is supportable and credible.
And hopefully you are not fooled. The federal court is not going to allow you to convert your 1443 to 42 USC 1983 since 1443 and 1983 are two entirely different instruments. 1443 is a removal and 1983 is not. If you wish to pursue constitutional violations in the federal court you will have to use the proper statutes to do it. The parent in this case was sent back to the state trial court and told that this appellate court is no stranger to others misinterpreting this statute in another case in 2003 (Mohammed v. Mohammed) and had ruled that remand was the appropriate ruling. The federal court is not going to interfere with the state enforcing an order you did not properly challenge. Don’t wait to be in this boat. If you are reading this and you cannot pay your child support, you need to address this immediately before you end up in an enforcement cycle. And if you are just brand new in the process, learn to argue your rights properly and learn how to stay out of this vicious pattern.
Section 1983 was enacted on April 20, 1871 as part of the Civil Rights Act of 1871, and is also known as the “Ku Klux Klan Act” because one of its primary purposes was to provide a civil remedy against the abuses that were being committed in the southern states, especially by the Ku Klux Klan. While the existing law protected all citizens in theory, its protection in practice was unavailable to some because those persons charged with the enforcement of the laws were unable or unwilling to do so. The Act was intended to provide a private remedy for such violations of federal law, and has subsequently been interpreted to create a species of tort liability. Section 1983 jurisdiction runs concurrent with the states and filing a 1983 suit does not remove the jurisdiction of the state courts.
Have you Received Full Disclosure?
Every person has their own reason for using specific instruments. 1441 and 1443 are not instruments that will get you heard in federal court for a divorce, child custody, or child support case however, unless you show that there is a statute in your state that said that you pay child support because of the color of your skin or that prohibited you from having custody based on the color of your skin. If you choose to use an instrument like this make sure you do your homework! Always weigh your risks and benefits.
We recap what some of the potential risks are here:
- Sanctions, being ordered to pay the other side’s attorney fees for the removal and possibly the costs for the attorney to prepare for the hearing or trial that you disrupted and delayed and related costs;
Unable to enforce your custody orders while in the removal process; (remember if the other parent violates your custody time however, they too can face sanctions and punishment for this when your case is remanded back if you file contempt/enforcement against them);
Unable to modify your orders while in the removal process;
Child support continuing to accrue and doesn’t go away; (check with an attorney to verify if this is the case in your state);
State and federal clock continuing to tick and losing time to file on other claims and charges; (check with an attorney in your state to verify if this is the case in your state)
Possible injunction from filing removal again without permission from the United States District Court judge.
Like the other federal courts who have heard these federal removals, the 5th circuit court of appeals decided that this statute does not apply to custody cases long ago in 2003 in a case called Mohammad v. Mohammad, 942, 943, stating “that a father’s conclusory allegation involving non-race-related civil rights violations were insufficient to support removal under section 1443 in a child custody matter.”
If you are in one of these cases, you should get prepared for when your case will be remanded back. Always make sure that you do your due diligence and research your own stuff and make sure that you have addressed any case you feel the other side could use against you and craft cogent argument on whether you believe your case can overcome the case law that the other side says discredits or defeats your case. And if you decide to do a 1983 filing, keep in mind that these are very technical and complex. You will have many barriers to overcome in that type of filing too. You can find more education about declaratory judgments using 1983 on this website. Contact us here if you need help finding this information.
Additional things you need to be aware of if you are considering filing a removal.
Even though the orders might not be getting enforced during removal, any violation of the orders by either party can be prosecuted when it gets sent back to the state.*
Here’s the thing, this removal was not intended for orders that had continuing jurisdiction of a family nature. Think about this, you cannot litigate your child custody case in federal court in the 50 states. So if you are wanting to be heard on federal constitutional rights violations in the federal courts, you will need to be aware of comity and federalism, and education on how to overcome abstention doctrines. If it is your constitutional rights you are wanting to litigate then you don’t need to remove your state case to do that. There are ways to prevent the state court from violating your constitutional rights after you get a declaratory judgment on these rights from the federal court. Contact us if you want more information on this here.
Another consideration is time that all of these take. We hear parents express urgency. When there is parental alienation time is of the essence. The more time you put between you and your child the worse the alienation can get. If you can use a tool that allows you to compress the results that you can get in the shortest amount of time you should consider that one in order to avoid more delays. We That’s our theory anyway.
Is this method salvageable?
The cases researched for this post were cases filed from 2004 through today’s date in 2018, May 2, 2018.*
Our analysis of this method therefore is that there is no path here at this time and no remedy has been found to cure the reasons the federal court has given for remand. This path would not work even if the arguments in the pleadings were perfect. The main thing that you have to overcome when you file a federal case is getting past the other side’s motion to dismiss. If you cannot beat their arguments for dismissal your case is dead. (You can read a Motion for Dismissal in the Momper v. State of Texas dismissal case.) Right now the other side doesn’t even have to make an argument and you will still lose if you cannot prove that the federal court has subject matter jurisdiction. In fact, that is exactly what has happened in some of these. Nobody even responded and the case was still remanded. This is not like state court where if the other side does not respond and does not show you get a default. It does not work that way in federal court.
Will this path result in going to the U.S. Supreme Court?
No. None of the federal courts have issued a contradictory opinion that we are aware of regarding the usage and applicability of 1441 and 1443. They have all rejected and remanded these filings for the same reasons, only applicable to defendants and only applicable to cases of civil rights violations involving persons of color.*** There are no contradictions and therefore no path has been created for these families to be heard in the United States Supreme Court any time soon. Sure you could argue that you could fight and challenge the way that the federal courts are using 1443, that however, we believe is a losing path and a longer path than just using 42 U.S.C. and 28 U.S.C. the declaratory judgment path.
There is a path in to Federal Court.
There are ways to get in to federal court on things that have impact in family law. Federal removal is not one of them. 28 USC 1983 under declaratory judgment however might be. Whatever path you use make sure that you do your own research and you are able to address the challenges that will arise. If you do not you could end up worse off then when you started this. Judges could punish you for filing in federal and if you don’t get relief from federal you will be in even more world of hurt.
NOTE: What you cannot do under any circumstances is to have a federal court rule on your custody issues. They will not take over your custody case from a state court, and if you live in any of the 50 states they will not let you initiate a custody case in federal court. They will only hear federal questions.
Whatever path you use, we hope that our information will help you strengthen your efforts and achieve success. We do not have any problem with people using different tools and methods. We have a problem with methods that hurt people without them understanding the consequences, and without having the ability to address the challenges.
We just want to make sure that you are making an informed choice that is right for you.
Were these results known previously to the author of these pleadings?
Yes! The author of the pleadings filed his own cases and failed at all three of them in 2003, 2004, and 2006. So if you are wondering whether the author knew that this method was going to fail. The answer is yes, he knew. The federal court stated that his first attempt was “frivolous,” his second attempt was again remanded for the same reasons as the first that his case was not a case of color, and his third attempt stated that “it was a clear effort to abuse federal removal on the eve of an important state court hearing as a means to inflict further delay and frustration on other parties in the state courts.”
The last filing was kicked back to state court on the same day that it was filed, with the explanation from the federal court that they were aware of his abuse of the process. One person selling these packages has claimed that the author has learned from their past mistakes. We don’t see it. And we do not see any evidence of disclosure or due diligence posted publicly. As stated earlier, you can have what you might think is good argument, which the pleadings that we have seen do not, but either way, good argument does not mean that they meet the statutory requirements. Argument doesn’t matter if you cannot prevent the case from being dismissed for failing to use a statute that allows the case into federal court.
Just failing though isn’t all of it. Of course, people can fail at things and then cure the problem or find a remedy and then try again. However if the instrument that they are using has no way to be successful then they would have to change the instrument. The author has not.
To our knowledge this author continues to sell these pleadings using others and convince people to use these statutes and no remedy to cure the reason that these cases are being kicked out and back to state court has been found. His recent pleadings ask the court to allow him to amend the complaint and convert it to a 28 USC 1983 pleading.This “conversion” request misconstrues the very nature of the proceedings.
Conversion, by the way, then would not be a “removal”. So our belief stands that this path for federal removal does not exist at this time.
Who Can I Ask for Help?
Parental Rights Advocates can be found all over the United States now, so choose your advocate wisely. If you do not know where to turn you can ask for help from us or from organizations that have been around for a very long time and have proven their credibility like The Father’s Rights Movement founder Thomas Fidler or Custody Calculations founder Catherine MacWillie.
We pulled this post for a short time because a parent in the removal process was concerned that some parents might use some of the information in this post to hurt the parents in the removal process or that it would provide ideas to the other side to attack them (meaning the other parent or the ex). We pulled this post temporarily to research that. We found during this time however that these same people have created a website and are posting some of the parents’ cases there. They tried to bully us into limiting the information that was available to you.
Parents are spending money with the people pushing this method without full disclosure and being sold an empty promise that this is going to save them somehow from the expense and abuse in the family court, or that it will create a lengthy delay. We have discovered that during the interim that we did not have this post up more parents were scammed into filing these without full disclosure. There are people continuing to sell this idea and take advantage of people at their most vulnerable time in their life. They are charging them $800 to file these in some situations, and then you additionally have to pay $400 to file it in the federal court. Federal removal is hurting people and is not a valid path for the parents we know about who have been sold the idea that they could use 28 U.S.C. 1443 to delay the state court enforcement proceedings. Some of the parents are being sanctioned, and one parent was sanctioned twice and an injunction placed to prohibit filing without permission first from the federal judge. This post was originally posted on March 24, 2017 and has been updated on May 2, 2018. As of today, I found for the first time that they have actually posted one of the sanction orders from the federal court. I’m glad to see that they have posted it.
We have found that not educating the public on this issue would actually be more harmful. For example, if there was no one educating the public about parental alienation, I would never have known that even existed. The first person I heard this phrase from was someone who has since passed away, but I am friend’s with her best friend, and am forever grateful to her. The first book that I read on parental alienation was from Joan Kloth-Zanard, “Where Did I Go Wrong? How Did I Miss the Signs?: Dealing with Hostile Parenting and Parental Alienation.” There are plenty of parents who hear other parents complaining that they lost custody to an alienating parent. The alienating parent benefited from turning the children on them and so other parents learn to do this to their benefit. It is only right that parents suffering from the alienating behaviors understand what is happening to them so that they do not get victimized. Just because someone can use the information to someone else’s detriment should not mean that you remain quiet and we will not remain quiet on this matter. If there was no parental alienation education out there and the damaging effects that it has on children, if all of the parents who experienced it shut up and stopped telling the world because evil parents might hear it and get the idea and do it too, more parents and children would become victims. No way! It’s only been recently that parents have been getting heard because enough of them have gotten brave enough to speak out and tell their story. We did our best however to be sensitive to the concerns of the fathers selling federal removal and have done what we could to reduce the risks and concerns of that they had only to find that they are posting the removals themselves and using it to bring in more people to file them. We made the message clear in this post that any parent thinking about violating orders during this process can be held accountable for those violations when the case is remanded back to the court as well, as that is what the parent stated their concern was about this post originally. The violations do not go away, just as the things that the other parent was being accused of do not go away. Parents need to know that this could happen and that if they file they might not be able to modify or they might not be able to file and be heard for interference of child custody. The parent choosing to file need to be able to make their decisions with full information so that they can be emotionally prepared. Hiding things from parents who have already been kept in the dark and hurt by it, should not have to worry about parental rights advocates preying on them as well and leading them down more dark alleys.
This information has been posted for educational purposes only, the identities that are revealed in this post are those that have already been revealed by others either on Facebook or on other websites. We did not write this post for purposes of attacking anyone, only to educate and to call out harmful behavior and flawed arguments. It is a post to educate those wanting to know more about this instrument.
*We took a sampling of the cases filed. This does not mean that we know of every case ever filed and does not mean that we reviewed every case from 2004 to 2018. Every case was remanded back and believe that this means that if you do the same thing the same way, you are bound to get the same results.
***Remember that we are not attorneys. We do know however what we have read and have seen what happens with these and we report on our knowledge based on our reading and our background as constitutional scholars. We do not claim to be experts in any of the legal technical mechanisms. We do read the case law and the statutes and the opinions of the courts. We are professionals at writing constitutional arguments, and experts at identifying when something can be overcome. We will improve or update our posts from time to time as needed.